Children, consent and deprivation of liberty
Produced in partnership with Tim Spencer-Lane

The following Local Government practice note produced in partnership with Tim Spencer-Lane provides comprehensive and up to date legal information covering:

  • Children, consent and deprivation of liberty
  • What is deprivation of liberty?
  • Valid consent
  • Can parents supply valid consent?
  • Implications for practice
  • Law Commission Report on Mental Capacity and Deprivation of Liberty and the Mental Capacity (Amendment) Act 2019

Children, consent and deprivation of liberty

This Practice Note considers recent court decisions on whether a parent can consent to the confinement of their child which, absent valid consent, would amount to a deprivation of liberty.

What is deprivation of liberty?

Article 5 of the European Convention on Human Rights (ECHR) guarantees the right to personal liberty and provides that no one should be deprived of their liberty in an arbitrary fashion. The protection under Article 5 of the ECHR applies to those of all ages. Article 5(1)(e) of the ECHR permits the lawful detention of, among others, 'persons of unsound mind' in accordance with a procedure prescribed by law. Article 5 also requires certain safeguards to be provided to persons deprived of their liberty, including the right of access to speedy judicial proceedings to challenge the lawfulness of the detention.

The question of when a deprivation of liberty arises is therefore crucial. In the context of a person of 'unsound mind', the European Court of Human Rights has confirmed that a deprivation of liberty has three elements:

  1. the objective element of confinement in a restricted space for a non-negligible period of time

  2. the subjective element that the person has not validly consented to that confinement, and

  3. the detention being imputable to the state

In most of the key cases, it is common ground that the second and third

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